Execution Copy
PLEDGE AND SECURITY AGREEMENT
THIS PLEDGE AND SECURITY AGREEMENT (this "Pledge Agreement"), dated as
of October 14, 2003, is made and given by ABFS Warehouse Trust 2003-1, a
Delaware statutory trust ("Grantor"), in favor of Clearwing Capital, LLC, a
Delaware limited liability company ("Secured Party").
RECITALS
WHEREAS, as consideration for arranging and providing certain
commitment and credit support to or for the benefit of Grantor in connection
with a proposed financing transaction, Secured Party is entitled to payments of
amounts under that certain ABFS Warehouse Trust 2003-1 Trust Certificate No. P-1
(the "Preferred Certificate"), that certain 2003-1 Trust Agreement (defined
below) and that certain Fee Letter (defined below); and
WHEREAS, as condition precedent for Secured Party to provide such
commitment and credit support, Secured Party has required that Grantor enter
into this Pledge Agreement to secure the Obligations (as defined below).
NOW, THEREFORE, in consideration of the foregoing recitals and the
mutual promises set forth in this Pledge Agreement, the parties hereto,
intending to be legally bound, agree as follows:
Section 1. Construction/Defined Terms. Unless the context hereof
clearly requires otherwise, references to the plural include the singular,
references to the singular include the plural, the term "including" is not
limiting, and the term "or" has, except where otherwise indicated, the inclusive
meaning represented by the phrase "and/or." Any reference in this Pledge
Agreement to any agreement, instrument or document shall include all
alterations, amendments, changes, extensions, modifications, renewals,
replacements, substitutions, joinders and supplements, thereto and thereof, as
applicable (subject to any restrictions on such alterations, amendments,
changes, extensions, modifications, renewals, replacements, substitutions,
joinders and supplements set forth therein). Any reference herein to any Person
shall be construed to include such Person's successors and assigns. As used in
this Pledge Agreement, the following terms shall have the following respective
meanings:
"2003-1 Trust Agreement" means that certain Trust Agreement, dated as
of September 26, 2003, between ABFS Consolidated Holdings, Inc., a Delaware
corporation and the Approved Mortgage Originators, as depositors, Wilmington
Trust Company, as owner trustee and ABFS, as indemnitor, whereby Grantor was
created, as amended and restated by the Amended and Restated Trust Agreement
dated as of October 14, 2003.
"2003-2 Trust Agreement" means that certain Trust Agreement, dated as
of October 14, 2003, between Grantor, as depositor, and Wilmington Trust
Company, as owner trustee, whereby Trust 2003-2 was created.
"ABC" means American Business Credit, Inc., a Pennsylvania corporation.
"ABFS" means American Business Financial Services, Inc., a Delaware
corporation.
"Approved Mortgage Originators" means third-party mortgage loan
origination companies that are approved by Lender in writing from time to time.
The initial Approved Mortgage Originators are ABC, Upland and ABMS.
"ABMS" means American Business Mortgage Services, Inc. fka New Jersey
Mortgage and Investment Corp., a New Jersey corporation.
"Affiliate" means, with respect to any Person, any other Person which
(i) directly or indirectly, controls, is controlled by, or is under common
control with, such Person, or (ii) is the depositor of such Person (if such
Person is a trust). For purposes of this definition, "control" (together with
the correlative meanings of "controlled by" and "under common control with")
means possession, directly or indirectly, of the power (a) to vote 10% or more
of the securities (on a fully diluted basis) having ordinary voting power for
the directors or managing general partners (or their equivalent) of such Person,
or (b) to direct or cause the direction of the management or policies of such
Person, whether through the ownership of voting securities, by contract, or
otherwise.
"Bailee" means JPMorgan Chase Bank.
"Bailee Agreement" means that certain Bailee Agreement, dated as of the
date hereof, among Grantor, Secured Party, and Bailee.
"Bankruptcy Code" means 11 U.S.C. Section 101 et seq., as amended from
time to time.
"Collateral" shall have the meaning set forth in Section 2.
"Collateral Business Records" shall mean and include all of Grantor's
books and records pertaining to any or all of the Collateral, including without
limitation, all books of accounts, ledgers, computer software, computer
printouts and other computerized records and cabinets in which there are
reflected or maintained the Collateral in which Secured Party has a security
interest.
"Control Agreement" means a control agreement, in form and substance
reasonably satisfactory to Secured Party, executed and delivered by Grantor,
Secured Party, and the applicable bank or depositary institution.
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"Distributions" means all interest on, all rights to receive dividends,
liquidating dividends, distributions, cash, instruments, shares of stock, stock
splits, reclassifications, warrants, options and any other property or proceeds
from time to time paid to, received, receivable or otherwise distributed in
respect of, or in respect of renewals and extensions of, all substitutions for
and all general intangibles arising in respect of, any Collateral, and all of
Grantor's rights, powers and remedies under the 2003-2 Trust Agreement or trust
agreements in connection with the Grantor Certificate and the IOS and any rights
to properties, assets, distributions, liquidating distributions and allocations
or profits and losses in respect of the Grantor Certificate and the IOS.
"Event of Default" shall mean each of the following events:
(i) the failure of Grantor, ABC or any of their Affiliates to make any
payment when due under the Fee Letter, the Preferred Certificate, the 2003-1
Trust Agreement or any other Obligation;
(ii) the commencement of an Insolvency Proceeding with respect to the
Grantor;
(iii) a proceeding or case shall be commenced, without the application
or consent of the Grantor in any court of competent jurisdiction, seeking the
appointment of, or taking of possession by, a receiver, custodian, trustee,
examiner, liquidator or the like of the Grantor of all or any substantial part
of its property, or similar relief in respect of the Grantor under any law
relating to bankruptcy, insolvency, reorganization, liquidation, dissolution,
arrangement or winding-up, or composition or adjustment of debts, and such
proceeding or case shall continue undismissed, or an order, judgment or decree
approving or ordering any of the foregoing shall be entered and continue
unstayed and in effect, for a period of 60 or more days;
(iv) the stay of or injunction, or the commencement of any action
seeking either such a stay or injunction, prohibiting the enforcement of
remedies available to the Secured Party hereunder;
(v) a default by Grantor under the Control Agreement governing the IOS
Account or the Bailee Agreement; or
(vi) the failure of Grantor to comply with Section 4 of this Pledge
Agreement.
"Fee Letter" means, collectively, (i) to the extent not superseded by
the fee letter described in clause (ii) below, that certain fee letter dated as
of September 22, 2003 by Secured Party and accepted and agreed to by ABFS, ABC,
ABMS and Upland and (ii) that certain fee letter, dated as of even date
herewith, by and among Secured Party, Trust 2003-2, Grantor, ABFS, ABFS
Consolidated Holdings, Inc., ABC, ABMS and Upland.
"Grantor Certificate" means that certain ABFS Warehouse Trust 2003-2
Trust Certificate No. T-1 issued by ABFS Warehouse Trust 2003-2 in favor of
Grantor.
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"Insolvency Proceeding" means any proceeding commenced by or against
any Person under any provision of the Bankruptcy Code or under any other state
or federal bankruptcy or insolvency law, assignments for the benefit of
creditors, formal or informal moratoria, compositions, extensions generally with
creditors, or proceedings seeking reorganization, arrangement, or other similar
relief.
"IOS" means the "interest only strips" listed on Schedule 1 hereto and
all rights and interests related thereto.
"IOS Account" means Grantor's account maintained at JPMorgan Chase Bank
bearing account number 00000000.1.
"Lender" means Chrysalis Warehouse Funding, LLC.
"Loan Agreement" means that certain Master Loan and Security Agreement
dated as of the date hereof, by and between Lender and Trust 2003-2.
"Mortgage Loan Assets" means, collectively, (capitalized terms used in
this definition but not otherwise defined in this Pledge Agreement shall have
the meanings assigned thereto in the Loan Agreement), together with any other
property and any other rights related thereto, all (a) Mortgage Loans, (b) the
related Mortgage Loan Documents together with all promissory notes, and
Servicing Records and any other collateral pledged or otherwise relating to such
Mortgage Loans, all files, material documents, instruments, surveys,
certificates, correspondence, appraisals, computer records, computer storage
media, accounting records and books and records relating thereto, (c) the
related Mortgaged Properties or any interest in real property collateralizing
any Mortgage Loan, (d) the related Mortgage Files, (e) the related Servicing
Files, (f) all mortgage guaranties and insurance (issued by governmental
agencies or otherwise) and any mortgage insurance certificate or other document
evidencing such mortgage guaranties or insurance relating to any Mortgage Loans
and all claims and payments thereunder, (g) all other insurance policies and
insurance proceeds relating to any Mortgage Loans or the related Mortgaged
Property, (h) all Interest Rate Protection Agreements, (i) all rights under the
Servicing Agreement, the Custodial Agreement or any other document related to
Mortgage Loans or the related Mortgaged Properties, (j) all purchase or take-out
commitments relating to or constituting any or all of the related Mortgage Loans
or the Mortgaged Properties and (k) all products and proceeds relating to any of
the items listed in the foregoing clauses (a) through (j).
"Obligations" shall mean the obligations and liabilities of any kind of
Grantor, ABC or any of its Affiliates to the Secured Party which may arise
under, or out of or in connection with (i) the Fee Letter (including any fees
thereunder not yet earned, not yet due or payable and earned but not yet paid or
payable), (ii) the Basic Documents (as defined in the 2003-1 Trust Agreement),
(iii) the Preferred Certificate, (iv) the 2003-1 Trust Agreement and (v) this
Pledge Agreement, in each case together with any other document made, delivered
or given in connection therewith or herewith, whether on
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account of covenants, reimbursement obligations, fees, indemnities, costs,
expenses or otherwise and irrespective of whether for the payment of money or
otherwise, whether direct or indirect, absolute or contingent, due or to become
due (including, without limitation, all fees earned under the Fee Letter that
have not yet been paid or are not yet payable), now existing or hereafter
arising; provided, however, "Obligations" shall not include any of the
obligations owing by Trust 2003-2 to Lender that Lender may assign to Secured
Party or to which Secured Party may succeed as a successor in interest to
Lender; provided further, however, that notwithstanding the foregoing, in all
events, the "Obligations" shall include the amount of any Capital Contributions
(as defined in the 2003-1 Trust Agreement), the amount of any Lender Expenses
(as defined in the Loan Agreement), the amount of any Indemnified Liabilities
(as defined in the Loan Agreement) and amounts under the Fee Letter.
"Person" shall mean any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, national banking association,
unincorporated organization or government or any agency or political
subdivisions thereof.
"Pledged Collateral" means the Grantor Certificate, all of the IOS and
any other Collateral pledged hereunder from time to time.
"Preferred Certificate" has the meaning assigned to it in the first
Recital hereto.
"Proceeds" shall have the meaning provided to it under the UCC and, in
any event, shall include, but not be limited to, (i) any and all proceeds of any
insurance, indemnity, warranty or guaranty payable to the Grantor from time to
time with respect to any of the Collateral, (ii) any and all payments (in any
form whatsoever) made or due and payable to Grantor from time to time in
connection with any requisition, confiscation, condemnation, seizure or
forfeiture of all or any part of the Collateral by any governmenta1 body,
authority, bureau or agency (or any Person acting under color of governmental
authority) and (iii) any and all distributions or other amounts from time to
time paid or payable under or in connection with any of the Collateral.
"Requirement of Law" shall mean, as to any Person, the charter and
by-laws or other organizational or governing documents of such Person, and any
material law, treaty, rule or regulation or determination of arbitration or a
court or other governmental authority, in each case applicable to or binding
upon such Person or any of its property or to which such Person or any of its
property is subject.
"Transaction Documents" means the documents and agreements set forth on
Schedule 2 hereto.
"Trust 2003-2" means that certain Delaware statutory trust named ABFS
Warehouse Trust 2003-2 created by the 2003-2 Trust Agreement.
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"UCC" shall mean -- except where the context refers to the Uniform
Commercial Code of another State of the United States of America -- the Uniform
Commercial Code as amended from time to time in force in the State of New York,
or any successor codes thereto.
"Upland" means HomeAmerican Credit, Inc. dba Upland Mortgage, a
Pennsylvania corporation.
Section 2. Grant of Security Interest. As collateral security for the
prompt and complete payment and performance when due (whether at the stated
maturity, by acceleration or otherwise) of all the Obligations, and in order to
induce Secured Party to provide commitment and credit support for the proposed
financing transaction, Grantor hereby pledges, hypothecates, assigns, charges
and mortgages to Secured Party, and hereby grants to Secured Party a continuing
security interest in, all of the following property now owned, or at any time
hereafter acquired, by Grantor or in which Grantor now has or at any time in the
future may acquire any right, title or interest (all of which is hereinafter
collectively referred to as the "Collateral"):
2.1 the Grantor Certificate;
2.2 all of the IOS;
2.3 all of the Transaction Documents;
2.4 all Collateral Business Records;
2.5 all Distributions and other payments and rights with
respect to any Collateral;
2.6 all voting rights of Grantor under the 2003-2 Trust
Agreement, and all other rights related thereto, including, without limitation,
to exercise and enforce every right, power, remedy, authority, option, and
privilege under any contractual obligations relating to the foregoing, including
the power to terminate, cancel or modify any contractual obligation with respect
to the foregoing, all rights to execute any instruments under any of such
contractual obligations, all rights to make determinations, to make any
elections (including election of remedies) or options, including to give,
withhold or receive any notice, consent, approval, amendment or waiver or to
demand, receive, enforce, collect or give receipt for any proceeds, to endorse
or enforce any instruments or orders, to file any claims or otherwise to take
any action in connection with any contractual obligation or in any way related
to the foregoing;
2.7 all "accounts", "chattel paper", "commercial tort claims",
"letter-of-credit rights", "goods", "money", "general intangibles", "inventory",
"equipment", "chattel paper", "documents", "instruments", "deposit accounts",
"securities accounts",
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and "investment property", as each of those terms is defined in the UCC and all
cash and all products and proceeds relating to or constituting any or all of the
foregoing; and
2.8 to the extent not otherwise included, all Proceeds and
products, replacements and substitutions, of any or all of the foregoing.
Notwithstanding anything to the contrary contained in this Section 2,
the term "Collateral" shall not include the Mortgage Loan Assets.
Section 3. Delivery of Pledged Collateral. The Grantor shall deliver
possession of all Pledged Collateral, and all other certificates or instruments
representing or evidencing any Collateral from time to time, to the Secured
Party, to be held by the Bailee on behalf of the Secured Party pursuant to the
Bailee Agreement, in each case, in suitable form for transfer by delivery,
accompanied by all necessary instruments of transfer or assignment, duly
executed in blank.
Section 4. Distributions. The Grantor shall cause all cash
Distributions in respect of any Collateral to be paid to, and held to the credit
of, the IOS Account, and Grantor shall, promptly after the date hereof, provide
irrevocable instructions in form and substance satisfactory to Secured Party to
each obligor on each IOS to make payments of any Distributions in connection
with such IOS directly to the IOS Account. All non-cash Distributions shall be
delivered to the Bailee as agent for and for the benefit of the Secured Party
and held as Collateral hereunder. All distributions from the IOS Account shall
be made in accordance with the provisions of the 2003-1 Trust Agreement.
Section 5. Rights of Secured Party; Limitations on Secured Party's
Obligations. Secured Party shall not have any obligation or liability under any
contract or undertaking of Grantor by reason of or arising out of this Pledge
Agreement or the assignment to Secured Party or the receipt by Secured Party of
any payment relating to any ownership interest in the Collateral, nor shall
Secured Party be required or obligated in any manner to perform or fulfill any
of the obligations of Grantor under or pursuant to any contract, to make any
payment, to make any inquiry as to the source, nature, propriety or sufficiency
of any payment received by Secured Party or as to the sufficiency of any
performance by any party under any agreement, to present or file any claim, to
take any action to enforce any performance or to collect the payment of any
amounts which may have been assigned to Secured Party or to which Secured Party
may be entitled at any time or times.
Section 6. Representations and Warranties. Grantor hereby represents
and warrants to Secured Party that from and after the date of this Pledge
Agreement until the Obligations are fully satisfied:
6.1 Title; No Other Security Interests. Except for the
security interest granted hereunder to Secured Party:
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(a) Grantor owns the interest in the Collateral in which it
hereby grants a security interest and which it hereby pledges to Secured Party
free and clear of any and all liens except as set forth on Schedule 3 hereto,
has the unrestricted right to grant the security interest and pledge its assets
as provided for herein and has granted to, or for the benefit of, Secured Party
a valid and perfected security interest in the Collateral, as, except as set
forth on Schedule 3 hereto, a first priority security interest, free of all
liens, encumbrances and transfer restrictions; Grantor is, and at the time of
pledge and delivery of the Pledged Collateral will be, the sole holder of record
and the sole beneficial owner of the Pledged Collateral, free and clear of any
lien thereon or affecting title thereto except as set forth on Schedule 3
hereto; all consents required for the fully effective pledge of the Pledged
Collateral as herein provided have been obtained;
(b) The Grantor Certificate has been duly authorized, validly
issued and is fully paid and non-assessable. The IOS have been duly authorized,
authenticated or issued and delivered by, and are the legal and binding and
obligations of the makers thereof, and no such maker is in default thereunder;
(c) Grantor has the right and requisite authority to pledge,
assign, transfer, deliver, deposit and set over the Pledged Collateral to
Secured Party as provided herein;
(d) As of the date hereof, there are no existing options,
warrants, calls, purchase rights or commitments of any character whatsoever
relating to the Pledged Collateral;
(e) None of the Pledged Collateral has been issued or
transferred in violation of the securities registration, securities disclosure
or similar laws of any jurisdiction to which such issuance or transfer may be
subject;
(f) Except as set forth on Schedule 3 hereto there is no
effective financing statement covering the Collateral or its proceeds on file in
any public office, or, if Grantor learns otherwise, Grantor will promptly cause
it to be terminated of record or provide substitute collateral acceptable to
Secured Party;
(g) Except as set forth on Schedule 3 hereto, neither the
trustee of any of the trusts nor any securities intermediary holding or owning
any part of the Collateral of record has been notified by or on behalf of
Grantor of any pledge of or security interest in such Collateral other than the
pledge of and security interest in such Collateral granted to Secured Party;
(h) Grantor will warrant and forever defend the title to the
Collateral and its proceeds and the security interest of the Secured Party
therein against the claims and demands of all Persons whomsoever (other than
those set forth on Schedule 3 hereto) claiming or to claim the same or any part
thereof and will maintain
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and preserve such security and the priority and perfection of the Secured
Party's security interest therein so long as this Pledge Agreement shall remain
in effect; and
(i) A true and complete copy of the 2003-1 Trust Agreement,
including all amendments, supplements and other modifications thereto, has
previously been delivered to Secured Party. Such trust agreement is a legal,
valid and binding agreement, enforceable by and against the Grantor (and, to
Grantor's knowledge, each other party thereto) in accordance with its terms,
subject to applicable bankruptcy, insolvency, moratorium, reorganization or
other similar laws affecting creditors' rights and to equitable principles of
general applicability. No additional contributions are required to be made by
Grantor in respect of the Grantor Certificate and there exist no liabilities or
obligations, monetary or otherwise, of Grantor to the issuer of the Grantor
Certificate.
6.2 Trade Names. Grantor's jurisdiction of organization is set
forth on Schedule 4 attached hereto. Any and all trade names under which Grantor
transacts any part of its business, and all former names of Grantor, are those
which are set forth on Schedule 4 attached hereto.
6.3 Accuracy of Information. All information, certificates or
statements given to Secured Party pursuant to this Pledge Agreement are and
shall be true and complete in all respects.
6.4 Power and Authority; Enforceability. Grantor has the
requisite power and authority to execute and deliver this Pledge Agreement and
to perform all of its obligations hereunder. The execution, delivery, observance
and performance of this Pledge Agreement, and the transactions contemplated
hereby, by Grantor have been duly authorized by all necessary action. The
execution, delivery, observance and performance of this Pledge Agreement, and
the transactions contemplated hereby, by Grantor will not result in the creation
of any lien, pledge, charge or encumbrance upon any properties or assets of
Grantor (except in favor of Secured Party). It is not necessary for Grantor to
obtain or make any (i) governmental consent, approval or authorization,
registration or filing (except for any appropriate UCC financing statements)
which has not been obtained from or with any governmental authorities or (ii)
consent, approval, waiver or notification of partners, creditors, lessors or
other nongovernmental persons, in each case, in connection with (x) the
execution and delivery of this Pledge Agreement, (y) the pledge by Grantor of
the Pledged Collateral under this Pledge Agreement or (z) for the exercise by
Secured Party of the rights provided for in this Pledge Agreement or the
remedies in respect of the Collateral which has not been given or obtained. This
Pledge Agreement has been duly executed and delivered by Grantor and constitutes
the valid and binding obligation of Grantor, enforceable against Grantor in
accordance with its terms, except as such enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar laws now or
hereinafter in effect relating to creditors' rights generally, and general
equitable principles.
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6.5 Sold IOS. The facilities relating to the IOS represented
by the following certificates have been terminated and all assets in the trust
related thereto have been liquidated: (a) Certificate No. 1, issued by ABFS
Mortgage Loan Warehouse Trust 2001-1, (b) Certificate No. 1, issued by ABFS
Mortgage Loan Warehouse Trust 2001-1; and (c) Certificate No. 1, issued by ABFS
Mortgage Loan Warehouse Trust 2000-2.
Section 7. Covenants. Grantor covenants and agrees with Secured Party
that from and after the date of this Pledge Agreement and until the Obligations
are fully satisfied:
7.1 Deliver Certificates. If, at any time, Grantor obtains
possession of any certificate or instrument constituting any of the Collateral
(or its proceeds), Grantor shall deliver such certificate or instrument to
Bailee for the benefit of Secured Party forthwith duly endorsed in blank without
restriction and with all signatures guaranteed with (in the case of any such
certificate or instrument that is or represents a security) a signature guaranty
acceptable at a national banking association and with all necessary transfer tax
stamps affixed.
7.2 Uncertificated Securities. If any of the Collateral is now
or hereafter becomes uncertificated securities, Grantor shall either (i) procure
the issuance of security certificates to represent such Collateral and endorse
and deliver such certificates as required by Section 7.1, or (ii) cause the
issuer of such securities to register a securities intermediary designated by
Secured Party as their registered owner or (iii) cause the issuer of such
securities to enter into an agreement, in form and substance satisfactory to
Secured Party, among Secured Party, the securities' registered owner and the
issuer to the effect that the issuer will comply with instructions originated by
Secured Party without further consent by the registered owner.
7.3 Other Collateral. As to all Collateral that is capable of
being perfected by the filing of a financing statement under the relevant
jurisdiction pursuant to the UCC, Grantor authorizes Secured Party to file such
financing statements or other instruments as are deemed necessary by Secured
Party to enable it to perfect its security interest in such Collateral under
applicable law.
7.4 Further Documentation; Pledge of Instruments. At any time
and from time to time, upon the written request of Secured Party, and at the
sole expense of Grantor, Grantor will promptly and duly authorize and
authenticate when requested any and all such further instruments and documents
and take such further action as Secured Party may reasonably request for the
purpose of obtaining the full benefits of this Pledge Agreement and of the
rights and powers herein granted, including, without limitation, the filing of
any financing or continuation statements under the UCC, which may be filed by
Secured Party with or (to the extent permitted by law) without the signature of
Grantor.
7.5 Defend and Cure Defects. If the validity or priority of
this Pledge Agreement or of any rights, titles, security interests or other
interests created or
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evidenced hereby or their priority or perfection shall be attacked, threatened
or questioned in writing, or if any legal proceedings are instituted with
respect thereto, Grantor will give prompt written notice thereof to Secured
Party and, at Grantor's own cost and expense, will diligently endeavor to cure
any defect that may be developed or claimed, and will take all necessary and
proper steps for the defense of such legal proceedings, and Secured Party
(whether or not named as a party) is hereby authorized and empowered to take
such additional steps as in its judgment and discretion may be reasonably
necessary or proper for the defense of any such legal proceedings or the
protection of the validity or the priority of this Pledge Agreement and the
rights, titles, security interests and other interests created or evidenced
hereby, and all expenses so incurred of every kind and character shall be a
demand obligation owing by Grantor as part of the Obligations.
7.6 Maintenance of Records. Grantor will xxxx its Collateral
Business Records pertaining to the Collateral to evidence this Pledge Agreement
and the security interests granted hereby.
7.7 Payment of Obligations. Grantor will pay promptly when due
all taxes, assessments and governmental charges or levies, if any, imposed upon
the Collateral or in respect of its income or profits therefrom, as well as all
claims of any kind against or with respect to the Collateral.
7.8 Limitation on Liens on Collateral. Grantor will not
create, incur or permit to exist, and will defend the Collateral against, and
will take such other action as is necessary to remove, any lien on or with
respect to the Collateral other than the security interests created hereby and
as set forth on Schedule 3 hereto, and will defend the right, title and interest
of Secured Party in and to any of the Collateral against the claims and demands
of all Persons other than those Persons holding liens as set forth on Schedule 3
hereto. Grantor will not sell, assign, transfer, pledge or otherwise dispose of
any type or item of Collateral except as expressly permitted by this Pledge
Agreement.
7.9 Limitations on Modifications of Collateral; No Waivers,
Extensions. Grantor will not (i) amend, modify, terminate or waive any provision
of any agreement giving rise to or evidencing its rights and interests in the
Collateral in any manner which might materially adversely affect the value of
such interests or the Collateral, or (ii) fail to exercise promptly and
diligently each and every right which it may have in respect of such interests
and each agreement giving rise thereto in any manner which could materially
adversely affect the value of the Collateral.
7.10 Right of Inspection. Secured Party shall at all times
have full and free access during normal business hours, and without disruption
of Grantor's day-to-day operations, to all the books, correspondence and records
of Grantor, including without limitation, the Collateral Business Records, and
Secured Party or its representatives may examine the same, take extracts
therefrom and make photocopies thereof; provided, however, that prior to the
occurrence of an Event of Default, Secured Party shall not,
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without the prior written consent of Grantor, remove any of Grantor's books,
correspondence and records from the premises where they are kept. Grantor agrees
to render to Secured Party, at Grantor's cost and expense, such clerical and
other assistance as may be reasonably requested with regard thereof. All such
inspections shall be undertaken at Grantor's sole expense. Secured Party will
take reasonable steps to maintain the confidentiality of information obtained by
it, except as required by law.
7.11 Change of Name; Jurisdiction of Organization. Grantor
agrees that it will not change (a) its name; (b) its jurisdiction of
organization; (c) its corporate structure; (d) the location of any office in
which it maintains books or records relating to Collateral; or (e) its federal
taxpayer identification number without giving Secured Party at least 30 days
prior written notice of any such proposed change.
7.12 Control Agreement. Grantor agrees that it will enter into
a Control Agreement substantially in the form of Exhibit A hereto with respect
to the IOS Account or any substitute or successor account thereto. Grantor
agrees that it will take any or all reasonable steps that Secured Party requests
in order for Grantor to obtain control in accordance with Section 9-104 of the
UCC with respect to the IOS Account or any substitute or successor account
thereto. Secured Party hereby covenants and agrees that so long as no Event of
Default exists, it shall not provide notice to the bank or depositary
institution under the Control Agreement governing the IOS Account or any
successor or substitute account thereto to cease complying with orders or
instructions originated by Grantor with respect to amounts therein.
7.13 Bailee Agreement. Grantor agrees that it will enter into
the Bailee Agreement in form and substance satisfactory to Secured Party.
7.14 Subordination. Grantor agrees that any indebtedness of
any obligor (other than Grantor) under the Fee Letter now or hereafter owed to
Grantor is hereby subordinated to the Obligations.
Section 8. Verification and Notification; Deposit With Secured Party.
Secured Party may verify Collateral in any reasonable manner and Grantor shall
assist Secured Party in so doing. All payments and distributions on the
Collateral will be made in accordance with the provisions of the 2003-1 Trust
Agreement. Any payment received by Grantor and not applied in accordance with
the 2003-1 Trust Agreement shall be held by Grantor in trust for Secured Party
in the same medium in which received, shall not be commingled with any assets of
Grantor and shall be turned over to the Secured Party not later than the next
business day following the day of receipt.
Section 9. Attorney-in-Fact.
(a) Without limiting anything contained in this Pledge
Agreement, Grantor irrevocably makes, constitutes, and appoints Secured Party
(and any of Secured Party's officers, employees, or agents designated by Secured
Party) as its true
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and lawful attorney, with power to, at any time that an Event of Default has
occurred and is continuing, endorse Grantor's name on any Pledged Collateral in
the possession of Secured Party, Bailee or its designated agents. The
appointment of Secured Party as Grantor's attorney, and each and every one of
its rights and power, being coupled with an interest, is irrevocable until all
of the Obligations have been fully and finally repaid and performed (in
accordance with the provisions for termination thereof).
(b) The powers conferred on Secured Party in this Pledge
Agreement are solely to protect its interests in the Collateral and shall not
impose any duty upon Secured Party to exercise any such powers. Secured Party
shall be accountable only for amounts that it actually receives as a result of
the exercise of such powers and neither Secured Party nor any of its officers,
directors, employees or agents shall be responsible to Grantor for any act or
failure to act, even if such act or failure to act is negligent, except for the
gross negligence or willful misconduct of Secured Party or any of its authorized
agents acting within the scope of their authority.
Section 10. Performance by Secured Party of a Grantor's Obligations. If
Grantor fails to perform or comply with any of its agreements contained herein
and Secured Party, as provided for by the terms of this Pledge Agreement, shall
perform or comply, or otherwise cause performance or compliance, with such
agreement, the expenses of Secured Party incurred in connection with such
performance or compliance, shall be payable by Grantor to Secured Party on
demand and shall constitute Obligations secured hereby.
Section 11. Remedies Upon the Occurrence of an Event of Default.
11.1 Acceleration. Upon the occurrence and during the
continuance of an Event of Default other than those events referred to in items
(ii) and (iii) of the definition of "Event of Default" herein, the Secured Party
may immediately declare all Obligations then outstanding to be immediately due
and payable, including without limitation, all interest, fees and other amounts
payable by the Grantor and all reasonable fees and out-of-pocket expenses
accruing under this Pledge Agreement; provided that upon the occurrence of an
Event of Default referred to in items (ii) or (iii) of the definition of "Event
of Default" herein, such amounts shall immediately and automatically become due
and payable without any further action by any Person. Upon such declaration or
such automatic acceleration, all Obligations then outstanding shall become
immediately due and payable, without presentment, demand, protest or other
formalities of any kind, all of which are hereby expressly waived by the Grantor
and Secured Party may thereupon exercise any remedies available to it at law and
pursuant to this Pledge Agreement.
11.2 General. Upon the occurrence and during the continuance
of an Event of Default, Secured Party may exercise, in addition to all other
rights and remedies granted to it in this Pledge Agreement and in any other
instrument or agreement securing, evidencing or relating to the Obligations, all
rights and remedies of a secured party under
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the UCC and other applicable law, and with respect to the IOS Account, the
Secured Party shall have the right to provide notice to the bank or depositary
institution to cease complying with orders or instructions originated by Grantor
or ABC, as administrator, with respect to all amounts therein pursuant to the
Control Agreement in connection therewith, and to require the bank or depositary
institution thereunder to deliver the amounts in the IOS Account and any other
accounts subject to the Control Agreement to Secured Party to be applied in
accordance with Section 12 of this Pledge Agreement. Without limiting the
generality of the foregoing, subject to Section 12 hereof, Grantor expressly
agrees that upon the occurrence and during the continuance of an Event of
Default, Secured Party may forthwith collect, receive, appropriate and realize
upon the Collateral, or any part thereof, and may forthwith sell, lease, assign,
or otherwise dispose of and deliver such Collateral or any part thereof (or
contract to do any of the foregoing), in one or more parcels at public or
private sale or sales, at any exchange or broker's board or at any of Secured
Party's offices or elsewhere at such prices as it may deem best for cash or on
credit or for future delivery without assumption of any credit risk. Secured
Party shall have the right upon any such public sale or sales, and, to the
extent permitted by law, upon any such private sale or sales, to purchase the
whole or any part of such Collateral so sold, free of any right or equity of
redemption in any Grantor, which right or equity is hereby waived or released to
the extent permitted by law. Grantor further agrees, at Secured Party's request,
to assemble the Collateral, make it available to Secured Party at places which
Secured Party shall reasonably select, whether at Grantor's premises or
elsewhere, at Grantor's sole cost and expense. All Proceeds which Secured Party
realizes in connection with the Collateral shall be applied in accordance with
Section 12 of this Pledge Agreement. To the extent permitted by applicable law,
Grantor waives all claims, damages, and demands against Secured Party arising
out of the repossession, retention or sale of the Collateral. Grantor agrees
that Secured Party need not give more than ten (10) days' prior written notice
of the time and place of any public sale or of the time after which a private
sale may take place and that such notice is reasonable notification of such
matters.
11.3 Costs. Grantor agrees to pay all costs of Secured Party,
including, without limitation, reasonable attorneys' fees (whether in-house or
outside counsel is used, whether legal assistants are used, and whether such
fees are incurred in negotiations, formal or informal collection actions,
federal bankruptcy proceedings, probate proceedings, on appeal or otherwise) and
legal expenses, actually incurred with respect to the collection of any of the
Obligations and the enforcement by Secured Party of any of its rights hereunder.
Section 12. Application of Proceeds. All monies collected by Secured
Party upon any sale or other disposition of the Collateral, together with all
other monies received by Secured Party hereunder or under the Control Agreement
or otherwise, shall first be applied to the payment of all costs and expenses
incurred by Secured Party in connection with such sale, the delivery of the
Collateral or the collection of any such monies (including, without limitation,
reasonable attorneys' fees and expenses), and the
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balance of such monies shall be applied to satisfy the Obligations to the extent
and in the manner set forth in Section 5.2 of the 2003-1 Trust Agreement. Any
surplus remaining after payment in full of the Obligations shall be returned to
Grantor or to any other Person lawfully entitled thereto (including, if
applicable, any subordinated creditor of Grantor). If the proceeds of any sale
or other disposition of the Collateral are insufficient to pay all the
Obligations in full to Secured Party, the Grantor shall be liable for any
deficiency.
Section 13. Limitation on Secured Party's Duty in Respect of
Collateral. Secured Party's sole duty with respect to the custody, safekeeping
and physical preservation of the Collateral in its possession, under the UCC or
otherwise, shall be to deal with it in the same manner as Secured Party deals
with similar property for its own account. Neither Secured Party nor any of its
directors, officers, employees or agents shall be liable for failure to demand,
collect or realize upon all or any part of the Collateral or for any delay in
doing so or shall be under any obligation to sell or otherwise dispose of any
Collateral upon the request of Grantor or otherwise (unless such conduct
constitutes gross negligence or willful misconduct).
Section 14. Powers Coupled with an Interest. All authorizations and
agencies herein contained with respect to the Collateral are irrevocable and
powers coupled with an interest.
Section 15. Lien Absolute. To the extent that the obligations secured
under this Pledge Agreement constitute obligations other than those of Grantor,
Grantor agrees that this is a guaranty of payment and performance and not of
collection. Grantor agrees that all rights of Secured Party hereunder, and all
obligations of Grantor hereunder, shall be primary, absolute and unconditional
irrespective of:
(a) any lack of validity or enforceability of, or any future
amendment of, or change in, the Preferred Certificate, the 2003-1 Trust
Agreement, the Fee Letter or any other agreement or instrument governing or
evidencing any of the Obligations;
(b) any change in the time, manner or place of payment of, or
in any other term of, all or any part of the Obligations, or any other amendment
or waiver of or any consent to any departure from the Preferred Certificate, the
2003-1 Trust Agreement, the Fee Letter, this Pledge Agreement or any other
agreement or instrument governing or evidencing any Obligations;
(c) any exchange, release or non-perfection of any Collateral,
or any action, or the absence of any action, by Secured Party in respect thereof
(including, without limitation, the release or amendment or waiver of or consent
to departure from any guaranty, for all or any of the Obligations);
(d) the insolvency of Grantor;
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(e) the absence of any action to enforce this Pledge Agreement
or the waiver or consent by Secured Party with respect to any of the provisions
hereof;
(f) any extension or waiver for the performance of, or
compliance with, any term, covenant or agreement on its part to be performed or
observed under the Preferred Certificate, the 2003-1 Trust Agreement, the Fee
Letter or any other agreement or instrument governing or evidencing any of the
Obligations, or any waiver of such performance or compliance or consent to a
failure of, or departure from, such performance of compliance, for any obligor
under any of the foregoing;
(g) release anyone who may be liable in any manner for the
payment of any amounts owed by Grantor to Secured Party;
(h) any other circumstance which might otherwise constitute a
legal or equitable discharge or defense available to, or a discharge of a surety
or guarantor.
Section 16. Waivers; Consents; Release.
(a) Grantor consents to, waives and agrees, as applicable,
that Secured Party may at any time, or from time to time, in its discretion:
(i) renew, extend or change the time of payment, and/or the
manner, place or terms of payment of all or any part of the Obligations; and
(ii) exchange, release and/or surrender all or any of the
Collateral, or any part thereof, by whomsoever deposited, which is now or may
hereafter be held by Secured Party in connection with all or any of the
Obligations in accordance with the terms of this Pledge Agreement; all in such
manner and upon such terms as Secured Party may deem proper, and without notice
to or further assent from Grantor, it being hereby agreed that Grantor shall be
and remain bound upon this Pledge Agreement, irrespective of the value or
condition of any of the Collateral, and notwithstanding any such change,
exchange, settlement, compromise, surrender, release, renewal or extension, and
notwithstanding also that the Obligations may, at any time, exceed the aggregate
amount thereof set forth in the of the Preferred Certificate, the 2003-1 Trust
Agreement, the Fee Letter or any other agreement or instrument governing or
evidencing any of the Obligations.
(b) Grantor hereby waives, and agrees that it shall not at any
time insist upon, plead or in any manner whatever claim or take the benefit or
advantage of, any appraisal, valuation, stay, extension, marshaling of assets or
redemption laws, or exemption, whether now or at any time hereafter in force,
which may delay, prevent or otherwise affect the performance by Grantor of its
Obligations under, or the enforcement by Secured Party of, this Pledge
Agreement. Grantor hereby waives notice of acceptance of this Pledge Agreement,
and also diligence, presentment, demand, protest (whether for
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non-payment or protest or of acceptance, maturity, extension of time, change in
nature or form of the Obligations, acceptance of further security, release of
further security, composition or agreement arrived at as to the amount of, or
the terms of, the Obligations, notice of adverse change in the financial
condition of any obligor under the Obligations other than Grantor or any other
fact which might increase the risk to Grantor) and notice of dishonor, of any
and all of the Obligations, and promptness in commencing suit against any party
hereto or liable hereon, and in giving any notice to or of making any claim or
demand hereunder upon Grantor. No act or omission of any kind on Secured Party's
part shall in any event affect or impair this Pledge Agreement. Grantor
represents, warrants and agrees that, as of the date of this Pledge Agreement,
its Obligations under this Pledge Agreement are not subject to any offsets or
defenses against Secured Party of any kind. Grantor further agrees that its
Obligations under this Pledge Agreement shall not be subject to any
counterclaims, offsets or defenses against Secured Party of any kind which may
arise in the future. It is agreed among Grantor and Secured Party that the
waivers set forth in this Pledge Agreement, including, without limitation, the
foregoing waivers, are of the essence of the transaction contemplated by the
Pledge Agreement and that, but for such waivers, Secured Party would decline to
provide commitment and credit support.
(c) In no event shall Secured Party have any obligation
(although it is entitled, at its option) to proceed against any obligor under
the Obligations other than Grantor or any collateral pledged to secure
Obligations before seeking satisfaction from Grantor, and Secured Party may
proceed, prior or subsequent to, or simultaneously with, the enforcement of
Secured Party's rights hereunder, to exercise any right or remedy which it may
have against any collateral, as a result of any lien it may have as security for
all or any portion of the Obligations.
(d) Upon Grantor's furnishing to Secured Party cash collateral
or other liquid collateral satisfactory to the Secured Party in an amount equal
to (i) the amount of all outstanding Obligations (including, without limitation,
all fees under the Fee Letter that have been earned but not yet paid or are not
yet payable) plus (ii) 10% of the sum of (A) the Maximum Credit (as defined in
the Loan Agreement) plus (B) to the extent the option to increase the Maximum
Credit (as defined in the Loan Agreement) has not expired, $150,000,000 plus
(iii) to the extent the option to increase the Maximum Credit (as defined in the
Loan Agreement) has not expired or such option has been exercised, all unpaid
fees in connection with the option to increase the Maximum Credit, including,
without limitation, all Increase Commitment Exercise Fees, Increase Credit
Support Fees and Increase Loan Commitment Fees, each as set forth in the Fee
Letter dated of even date herewith (and including any fees not yet earned and
any fee not yet due or payable) plus (iv) an expense reserve in an amount of
$7,500,000, which cash collateral or other liquid collateral shall be held in an
account designated by Secured Party in its sole and absolute discretion, Secured
Party agrees to release all of its right, title and interest in the IOS, and, at
the sole expense of Grantor, to execute and deliver
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such instruments and documents as Grantor may reasonably request for the purpose
of releasing Secured Party's interests in such IOS.
(e) Upon termination of this Pledge Agreement and payment to
the Secured Party of all Obligations in full in cash, including without
limitation all amounts required to be paid pursuant to Section 11.3 hereof, and
the performance of all Obligations under the Bailee Letter and any applicable
Control Agreement, the Secured Party shall release its security interest in any
remaining Collateral and execute and deliver, at Grantor's expense, such
additional documents as may be reasonably requested by the Grantor to effectuate
such release; provided that if any payment, or any part thereof, of any of the
Obligations is rescinded or must otherwise be restored or returned by the
Secured Party upon the insolvency, bankruptcy, dissolution, liquidation or
reorganization of the Grantor, or upon or as a result of the appointment of a
receiver, intervenor or conservator of, or a trustee or similar officer for the
Grantor or any substantial part of its property, or otherwise, this Pledge
Agreement, all rights hereunder and the liens created hereby shall continue to
be effective, or be reinstated, until such payments have been made.
Section 17. Deferral of Subrogation, Etc. Notwithstanding anything to
the contrary in this Pledge Agreement, Grantor hereby:
(a) expressly and irrevocably waives, on behalf of itself and
its successors and assigns (including any surety) until the payment in full of
the Obligations, any and all rights at law or in equity to subrogation, to
reimbursement, to exoneration, to contribution, to indemnification, to set off
or to any other rights that could accrue to a surety against a principal, to a
guarantor against a principal, to a guarantor against a maker or obligor, to an
accommodation party against the party accommodated, to a holder or transferee
against a maker, or to the holder of any claim against any Person, and which
Grantor may have or hereafter acquire against Secured Party in connection with
or as a result of Grantor's execution, delivery and/or performance of this
Pledge Agreement, or any other documents to which Grantor is a party or
otherwise; and
(b) acknowledges and agrees that this waiver is intended to
benefit Secured Party only (and no third party) and shall not limit or otherwise
effect Grantor's liability hereunder or the enforceability of this Pledge
Agreement.
Section 18. Indemnification. Grantor agrees to hold Secured Party
harmless from and indemnify Secured Party against all liabilities, losses,
damages, judgments, costs and expenses of any kind which may be imposed on,
incurred by or asserted against Secured Party relating to or arising out of (i)
this Pledge Agreement, the Bailee Agreement, the Control Agreement governing the
IOS Account, any other document or any transaction contemplated hereby or
thereby, or any amendment, supplement or modification of, or any waiver or
consent under or in respect of, this Pledge Agreement, the Bailee Agreement, the
Control Agreement governing the IOS Account, any other document or any
transaction contemplated hereby or thereby, other than due to Secured
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Party's breach hereof or thereof, (ii) any delay in paying any and all excise,
sales or other taxes which may be payable or determined to be payable with
respect to any of the Collateral and (iii) any delay in complying with any
Requirement of Law applicable to any of the Collateral. In any suit, proceeding
or action brought by Secured Party for any sum owing in respect of the
Collateral, or to enforce any provisions of such Collateral, Grantor will save,
indemnify and keep Secured Party harmless from and against all expense, loss or
damage suffered by reason of any defense, setoff, counterclaim, recoupment or
reduction of liability whatsoever of the trustee of any trusts, or any receiver,
bankruptcy trustee or other representative thereof, or any successor, or any
other Person obligated on the Collateral, arising out of a breach of Grantor of
any obligation thereunder or arising out of any other agreement, indebtedness or
liability at any time owing to or in favor of such account debtor or obligor or
its successors from Grantor, and all such obligations of Grantor shall be and
remain enforceable against and only against Grantor and shall not be enforceable
against Secured Party.
Section 19. Notices. Any notice or other communication required or
permitted to be given hereunder shall be in writing and shall be given by
Federal Express, Express Mail, or similar overnight delivery or courier service
or delivered (in person or by telecopy, telex, or similar telecommunications
equipment) against receipt to the party to whom it is to be given, addressed as
follows:
If to Grantor:
ABFS Warehouse Trust 2003-1
c/o Wilmington Trust Company as Owner Trustee
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Telephone No.: (000) 000-0000
Fax No.: (000) 000-0000
Attention: Corporate Trust Administration
If to Secured Party:
Clearwing Capital, LLC
c/o Chrysalis Management Group, LLC
The Belgravia Building
0000 Xxxxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Telephone No: (000) 000-0000
Fax No.: (000) 000-0000
Attention: Xxxx Xxxxxxx
Any notice shall be deemed given at the time of receipt thereof.
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Section 20. Severability. The holding of any provision of this Pledge
Agreement to be invalid or unenforceable by a court of competent jurisdiction
shall not affect any other provision of this Pledge Agreement, which shall
remain in full force and effect. If any provision of this Pledge Agreement shall
be declared by a court of competent jurisdiction to be invalid, illegal or
incapable of being enforced in whole or in part, such provision shall be
interpreted so as to remain enforceable to the maximum extent permissible
consistent with applicable law and the remaining conditions and provisions or
portions thereof shall nevertheless remain in full force and effect and
enforceable to the extent they are valid, legal and enforceable, and no
provisions shall be deemed dependent upon any other covenant or provision unless
so expressed herein.
Section 21. Section Headings. The headings in this Pledge Agreement are
for convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
Section 22. No Waiver; Cumulative Remedies. Secured Party shall not by
any act of delay, indulgence, omission or otherwise be deemed to have waived any
right or remedy hereunder or to have acquiesced in any Event of Default or in
any breach of the terms and conditions hereof. A waiver by Secured Party of any
right or remedy hereunder on any one occasion shall not be construed as a bar to
any right or remedy which Secured Party would otherwise have had on any future
occasion. No failure to exercise nor any delay in exercising on the part of
Secured Party any right, power or privilege hereunder, shall operate as a waiver
thereof, nor shall any single or partial exercise of any right, power or
privilege hereunder preclude any other or future exercise thereof or the
exercise of any other right, power or privilege. The rights and remedies
hereunder provided are cumulative and may be exercised singly or concurrently,
and are not exclusive of any rights and remedies provided by applicable law.
Section 23. Waivers and Amendments; Successors and Assigns; Governing
Law. None of the terms or provisions of this Pledge Agreement may be waived,
altered, modified or amended except by a written instrument, duly executed by
each of the Grantor and the Secured Party. This Pledge Agreement and all
obligations of the parties hereunder shall bind and benefit the successors and
assigns of the parties, provided that Grantor may not assign or transfer any of
its rights or obligations hereunder without the prior written consent of Secured
Party. Nothing in this Pledge Agreement, express or implied, shall be construed
to confer upon any other person (other than the parties hereto and their
respective successors and assigns) any rights or remedies. This Pledge Agreement
shall be governed by, and be construed and interpreted in accordance with, the
internal laws (and not the laws of conflict) of the State of New York.
Section 24. Counterparts. This Pledge Agreement may be executed in any
number of counterparts and by the different parties hereto on separate
counterparts, each of which when so executed and delivered shall be an original,
but all of which together shall constitute one and the same instrument, and it
shall not be necessary in making
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proof of this Pledge Agreement to produce or account for more than one such
counterpart.
Section 25. Entire Agreement. This Pledge Agreement sets forth the
entire understanding of the parties with respect to the subject matter herein
between Grantor and Secured Party and supercedes all existing agreements between
them concerning such subject matter.
Section 26. Limitation of Liability. It is expressly understood and
agreed by the parties hereto that, with respect to the Grantor, (a) this Pledge
Agreement is executed and delivered by Wilmington Trust Company, not
individually or personally, but solely as owner trustee of Grantor, in the
exercise of the powers and authority conferred and vested in it, (b) each of the
representations, undertakings and agreements herein made on the part of Grantor
is made and intended not as personal representations, undertakings and
agreements by Wilmington Trust Company but is made and intended for the purpose
for binding only Grantor, (c) nothing herein contained shall be construed as
creating any liability on Wilmington Trust Company, individually or personally,
to perform any covenant of Grantor either expressed or implied contained herein,
all such liability, if any, being expressly waived by the parties hereto and by
any person claiming by, through or under the parties hereto and (d) under no
circumstances shall Wilmington Trust Company be personally liable for the
payment of any indebtedness or expenses of Grantor or be liable for the breach
or failure of any obligation, representation, warranty or covenant made or
undertaken by Grantor under this Pledge Agreement.
[Signature Page Follow]
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IN WITNESS WHEREOF, Grantor and Secured Party have caused this Pledge
Agreement to be executed by their duly authorized offices on the date first set
forth above.
ABFS Warehouse Trust 2003-1
By: WILMINGTON TRUST
COMPANY, not in its individual
capacity but solely as trustee of ABFS
Warehouse Trust 2003-1
By: /s/ Xxxxxxxx X. Xxxxxxxx
-----------------------------------------
Name: Xxxxxxxx X. Xxxxxxxx
----------------------------------
Title: Financial Services Officer
----------------------------------
Clearwing Capital, LLC,
a Delaware limited liability company
By: Chrysalis Capital Partners, LLC,
a Delaware limited liability company
Its Manager
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxxx
----------------------------------
Its Sole Member
